Lohardaga v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) (Against the judgment of conviction dated 4th August 2015 and the order of sentence dated 7th August 2015 passed by Sri Pravas Kumar Singh, the learned Sessions Judge, Lohardaga, in S.T. Case No. 144 of 2008) Criminal Appeal (DB) No. 642 of 2015 1. 2. Ajay Kumar Sahu, son of Sri Krishna Sahu Santosh Kumar Sahu @ Santosh Sahu, son of Sri Samu Sahu Both are residents of Mauza Tati, P.O. and P.S. Kuru, District- Lohardaga Versus The State of Jharkhand With ... … Appellants …. ... Respondent Criminal Appeal (DB) No. 648 of 2015 Ravi Paswan, son of Sri Buneshwar Paswan, resident of village Tati, P.O. & P.S. Kuru, District Lohardaga. Versus The State of Jharkhand ... … Appellant …. ... Respondent CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE NAVNEET KUMAR
Legal Reasoning
For the Appellant(s): Mr. Jitendra Singh, Advocate Mr. Chanchal Jain, Advocate [in Criminal Appeal (D.B.) No. 642/2015] Mr. Nagmani Tiwari, Advocate Mr. Govind Ray Karan, Advocate [in Criminal Appeal (D.B.) No. 648/2015] For the State: Mr. Manoj Kumar Mishra, APP [in Criminal Appeal (D.B.) No. 642/2015] Ms. Nehala Sharmin, Spl. PP [in Criminal Appeal (D.B.) No. 648/2015] For Pvt. Respondent: Mr. Ashish Kumar Thakur, Advocate Mrs. Kabisha Goenka, Advocate ----- 16th April 2024 Per, Shree Chandrashekhar, A.C.J. Ajay Kumar Sahu and Santosh Kumar Sahu @ Santosh Sahu who are the appellants in Criminal Appeal (DB) No. 642 of 2015 and Ravi Paswan who is the appellant in Criminal Appeal (DB) No. 648 of 2015 are aggrieved by the judgment rendered in S.T. Case No. 144 of 2008, convicting them for the offences under sections 148, 149, 307, 323 and 341 of the Indian Penal Code and under section 27 of the Arms Act. 2. In S.T. Case No. 144 of 2008, the trial Court has held as under: “10. I have given anxious consideration to the facts and circumstances of the case, as far as evidence adduced by interested witness is concerned the law has been settled that the evidence of interested witness cannot be brushed aside only for being an interested witness and the only precaution which the court is required to take to examine their evidence with caution and chary. It has been considered in AIR 1981 SC 1390 that related is not equivalent to interested, it has been found that the term interested postulates that the person concerned must have direct interest in seeing that the accused persons is somehow or otherwise convicted either because he has some animus with the accused or for other reason. It has been found in 1980 Cr. Law J; 1330 (SC) that interested testimony may be the basis of conviction even without corrobotion, if the same is intrinsically reliable and inherently probable. In AIR 1971 SC 296, it was found that in a murder case the brother of the deceased found more credible. In (2000) 7 SCC 490, it was found that if the relative witness have seen the occurrence it is only natural that they would implicate the real offender. It has been further found that unless it is proved that witness has a motive to spare the real offender and to implicate the accused the relative witness can not be disbelieved. I have examined the evidence of the prosecution with caution and chary to scrutinize, whether there were any chances of telling lies before the court. It appears that the occurrence has been said to be committed in the late evening and the other persons of the vicinity might not have come to the place as the accused persons were armed with firing arms and making open firing. 11. In view of the fact and discussion, I find that the prosecution has amply proved its case for the offences u/s 148, 149, 307, 323, 341 of the I.P.C alongwith Sec 27 of the Arms Act against the accused persons namely Ajay Kumar Sahu, Ravi Paswan, and Santosh Sahu. I have considered the submission of the learned defence counsel that in these three accused persons only accused Santosh Sahu is saddled with making assault by firing arms and the other two accused persons have been alleged to be present at the place only. 12. The learned P.P. has submitted in this case the accused persons are saddled with the charge which has been framed with the section 149 of the I.P.C which lays down “that every member of unlawful assembly guilty of offence committed in prosecution of common object is to be made guilty for that offence. It is stated that Sec. 149 creates a distinct and substantive offence and unlike Sec. 34 does not lay down a principle of constructive criminal liability. The section describes the offence which may be attributed under two alternative form viz. i). it must be either an offence committed by a member of unlawful assembly in prosecution after the common object of that assembly, ii). an offence such as the members of that assembly knew it to be likely to be committed in prosecution of that object. The section creates a constructive or vicarious liability. The basis of such constructive guilt is mere membership of unlawful assembly with the requisite common object or knowledge. It has been argued while the overt act and active participation may indicate common intention of a person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability u/s 149 I.P.C. It is submitted that even though the accused Ajay Kumar Sahu and Ravi Paswan did not make any firing, the ingredient 2 Cr. Appeal (DB) Nos. 642/2015 with 648/2015 for the offence u/s 307 I.P.C. will be attracted against them alongwith the main charge u/s 27 Arms Act. 13. In view of the fact and circumstances and discussion, the accused persons namely Dilip Singh and Pramod Sahu are hereby acquitted of the charges u/s 148, 149, 323, 341, 307 of the I.P.C and 27 of the Arms Act while accused persons namely Ajay Kumar Sahu, Ravi Paswan and Santosh Sahu are hereby convicted for the offences u/s 148, 149, 307, 323, 341 of the I.P.C. alongwith Sec 27 of the Arms Act. The accused person who are on bail are taken into custody. The accused person who have been acquitted are hereby discharged from the respective liabilities of their bail bonds. Put up for hearing on the point of sentence.” 3. In S.T. Case No. 144 of 2008, the above-named appellants were convicted and sentenced in the following manner: Name of Accused 1. Ajay Kumar Sahu 2. Santosh Sahu 3. Ravi Paswan Conviction Sentence under sections 148, R.I. for 10 years along with 149, 307, 323 and 341 fine of Rs. 10,000/- per accused of the Indian Penal for the offence under section Code and under 307 IPC in default of fine, to section 27 of the undergo S.I. for two months. Arms Act. No separate sentence is being passed for the offences under sections 323, 341, 148, 149 of the IPC and for the offence under section 27 of the Arms Act. 4. This is the case of the prosecution that Kuru P.S. Case No. 86 of 2008 was registered against 13 persons for committing riot with dangerous weapon and attempting to cause death of Akbar Khan and Akhlakh Khan. The father of Akbar Khan gave his fardbeyan before the Officer-In-Charge of Kuru Police Station at around 11:00AM on 19th August 2008 at RIMS, Ranchi. In his fardbeyan, Md. Sikandar Khan stated that in the night of 18/19th August 2008 several persons assembled around his house and attempted to break open the door of his house. He was dragged outside the house by Santosh Sahu and on instigation by the accused who was resembling like a tribal man the accused persons started firing and caused serious injuries to his son Akbar Khan and son-in-law Akhlakh Khan. 5. After the investigation, a chargesheet was laid against Pramod 3 Cr. Appeal (DB) Nos. 642/2015 with 648/2015 Sahu, Ajay Kumar Sahu, Ravi Paswan, Santosh Sahu and Dilip Kumar Singh who faced the trial on the charge under sections 148, 149, 307, 323 and 341 of the Indian Penal Code and section 27 of the Arms Act. 6. PW1 Akbar Khan, PW2 Md. Sikandar Khan and PW7 Akhlakh Khan are the star witnesses for the prosecution who tendered cogent, consistent and reliable evidence during the trial. These witnesses are closely related to each other and on that ground their testimony has been challenged as laced with malice. A related witness may be interested in prosecution of the accused and for that reason the testimony of such interested witnesses has to be examined with care and caution. However, relationship shall not be a ground to disbelieve the evidence tendered by the interested witness because the relatives of the victim would not falsely implicate an innocent person in the crime. In “Mano Dutt v. State of U.P” (2012) 4 SCC 79 the Hon’ble Supreme Court made the following observations regarding evidence of the family and friends of the victim: “24. …..Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party.” 7. PW1 who is the son of the informant deposed in the Court that the accused persons had been issuing threats for removing the Gumti (shop) of his father. In the night of 18th August 2008, PW1 on hearing cries of his father came out from the house and suffered gunshot injuries in his abdomen. He made allegation of firing upon Jaleshwar Lohra and Santosh Sahu who were part of the unlawful assembly which had gathered near his house in the fateful night. PW2 who is the informant of this case made allegation against Jaleshwar Lohra that he was carrying a gun in his hand. This witness stated about gunshot injuries suffered by his son and son-in- law. PW3 who is the daughter-in-law of the informant identified Jaleshwar 4 Cr. Appeal (DB) Nos. 642/2015 with 648/2015 Lohra in the dock but she could not tell the name of the persons who had caused firearm injuries to PW1 and PW7. The wife of the informant who tendered evidence as PW4 identified Jaleshwar Lohra and Santosh Sahu who caused firearm injuries to her son and son-in-law. 8. The offence under section 307 of the Indian Penal Code envisages that the accused should have intention or knowledge which in the circumstances of the case would demonstrate that his act would have caused death and he would have been guilty of murder. 9. Section 307 of the Indian Penal Code reads as under: “307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts.—When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.” 10. A fundamental distinction between the offence punishable under section 307 of the Indian Penal Code and section 302 of the Indian Penal Code is that the offence under section 307 of the Indian Penal Code is not culpable homicide. What is required by the prosecution to establish a charge under section 307 of the Indian Penal Code is that the accused had requisite intention or knowledge that if successfully executed the alleged act would have caused death. In “Hari Singh v. Sukhbir Singh” (1988) 4 SCC 551 the Supreme Court has observed as under: that section. The “7. … Under Section 307 IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and intention or in under circumstances mentioned knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. ….” 11. PW11 is the doctor who first examined PW1 Akbar Khan at PHC Kuru on 19th August 2008 and found four linear injuries over his left 5 Cr. Appeal (DB) Nos. 642/2015 with 648/2015 shoulder joint, back of left shoulder joint, left knee joint and right forearm. On the same day, PW11 examined Akhlakh Khan (PW7) and found linear wound over left side of his abdomen. Later, PW9 examined Akhlakh Khan at RIMS and found a single circular wound of 2 cm x 2 cm over left side of his abdomen. On the same day, he also examined Akbar Khan and found firearm injuries over his right forearm, below right shoulder, above knee joint, below left inquinal area, left axilla lateral aspect and left side of neck. The prosecution thus established that PW1 and PW7 received gunshot injuries in the occurrence. The presence and participation of accused, namely, Ajay Kumar Sahu, Santosh Kumar Sahu and Ravi Paswan are also established by the evidence of the prosecution witnesses. They are said to be the part of the unlawful assembly that had gathered near the shop of the informant in the night of 18th August 2008. 12. The defence set up by the appellants is of simple false implication. They are the neighbours of the informant and even in the dark night their identification by the informant and injured witnesses may inspire confidence of the Court. However, what is contended by Mr. Jitendra Singh, the learned counsel for the appellants is that to implicate the appellants with aid of section 149 of the Indian Penal Code it is necessary for the prosecution to establish that the accused shared common object to attempt to cause death of PW1 and PW7 or that they had knowledge that the offence of attempt to murder may be committed in the offence. 13. In “Joseph v. State Rep. by Inspector of Police” (2018) 12 SCC 283 the Hon'ble Supreme Court has held as under: “11. Before we consider the testimony of the witnesses, let us consider the requirements for invoking the vicarious liability under Section 149 IPC. Section 149 IPC consists of two parts: 11.1. The first part of the section means that there exists common object and that the offence has been committed in the prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. 11.2. The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149, if it can be shown that the offence was such as the members knew was likely to be committed. 11.3. What is important in each case is to find out if the offence was 6 Cr. Appeal (DB) Nos. 642/2015 with 648/2015 committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established.” 14. PW1 was specific in his examination-in-chief that when he came out from the house and rushed near the shop the accused persons started fleeing away and fired shots at him and other witnesses. PW7 stated in his examination-in-chief that someone fired shot in the night but he did not identify the accused person who had fired shot. In paragraph no.2 of his examination-in-chief, PW7 stated that in the torch light he could identify Santosh Sahu and Ravi Paswan. On that basis, Mr. Manoj Kumar Mishra, the learned APP would submit that these appellants had fired shot at PW7. The evidence tendered by the prosecution witnesses that the accused persons fired shots while fleeing away from the place of occurrence would demonstrate that attempt to cause death was not the common object of the unlawful assembly. Therefore, the conviction of the appellants under section 307/149 of the Indian Penal Code is set aside. Now what has to be seen is the individual role played by the appellants. 15. From the evidence produced by the prosecution, it is established that common object of the unlawful assembly was beating and voluntarily causing hurt to the informant and others. There being no specific role attributed to Ajay Kumar Sahu and Ravi Paswan, they are convicted and sentenced to rigorous imprisonment for one year under section 148 of the Indian Penal Code; no separate sentence is required to be awarded under sections 323 and 341 of the Indian Penal Code. 16. This is the case of the prosecution that Santosh Sahu and Jaleshwar Lohra fired at PW1 and PW7. Jaleshwar Lohra was not sent up for trial and the prosecution evidence as regards the person(s) who fired shots upon PW1 and PW7 is not consistent. Therefore, a benefit of doubt shall be extended to Santosh Sahu and he is convicted and sentenced to R.I. 7 Cr. Appeal (DB) Nos. 642/2015 with 648/2015 for 3 years under section 325/34 of the Indian Penal Code. 17. The appellants have pleaded that son of the informant has condoned their misdeeds and entered into a compromise with them. The compromise entered by son of the informant with the appellants has been brought on record. In “Manjit Singh v. State of Punjab” (2020) 18 SCC 777, the Hon'ble Supreme Court has observed that compromise between the parties shall be a relevant fact for deciding the quantum of punishment. 18. In “Manjit Singh” the Hon’ble Supreme Court held as under: “5. Section 307 IPC is a non-compoundable offence. No permission can be granted to record the compromise between the parties. In Ishwar Singh v. State of M.P., the Supreme Court of India has held that in a non- compoundable offence the compromise entered into between the parties is indeed a relevant circumstance which the Court may keep in mind for considering the quantum of sentence. In paras 13 and 14 of the judgment in Ishwar Singh this Court has held as under: v. “13. In Jetha Ram State of Rajasthan, Murugesan v. Ganapathy Velar and Ishwarlal v. State of M.P., this Court, while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellant-accused to already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan, such offence was ordered to be compounded. 14. In our considered opinion, it would not be appropriate to order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned counsel for the appellant deserves consideration imposing substantive sentence, the factum of compromise between the parties is indeed a relevant circumstance which the Court may keep in mind.” that while 6. As noted earlier, in the present case the appellant-accused, Manjit Singh, has been sentenced to undergo imprisonment for five years. The appellant is said to have served seventeen months of imprisonment. Taking note of the compromise entered into between the parties and considering the relationship of the parties and the facts and circumstances of the case and also the sentence undergone by the appellant-accused, the sentence of imprisonment imposed upon the appellant under Sections 307 and 324 IPC is reduced from five years/two years to the period already undergone by him. The appellant is ordered to be released forthwith unless his presence is required in any other case.” 19. In view of the compromise between the parties, the above order of punishment against Santosh Sahu is modified to the sentence of the period already undergone with fine of Rs. 2,00,000/- out of which Akbar Khan and Akhlakh Khan shall be paid Rs. 1,00,000/- each as compensation. On failure of Santosh Sahu to pay the fine amount, he shall surrender in the Court concern to suffer further S.I. for six months. 8 Cr. Appeal (DB) Nos. 642/2015 with 648/2015 20. In view of the compromise and having regard to the period of custody undergone by Ajay Kumar Sahu and Ravi Paswan, they are sentenced to period already gone with fine of Rs. 10,000/- each; that shall be paid to Akbar Khan and Akhlakh Khan as compensation. On failure of these accused to pay the fine amount, they shall surrender in the Court concern to suffer further S.I. for one month. 21. Ajay Kumar Sahu, Santosh Kumar Sahu @ Santosh Sahu and Ravi Paswan are on bail. They are discharged of liability of the bail-bonds furnished by them. 22. These criminal appeals are partly allowed in the aforesaid terms.
Decision
Pending Interlocutory Applications stand disposed of. 23. Let the trial Court records be transmitted to the Court concerned, forthwith. 24. Let a copy of the judgment be transmitted to the Court concerned through FAX. (Shree Chandrashekhar, A.C.J.) (Navneet Kumar, J.) VK/J.Minj A.F.R. 9 Cr. Appeal (DB) Nos. 642/2015 with 648/2015